Miles of Asphalt and the Evolving Rule of Law: Are We There Yet?
| Publication year | 2002 |
| Pages | 21-32 |
71 J. Kan. Bar Assn. 5, 21-32 (2002). Miles of Asphalt and the Evolving Rule of Law: Are We There Yet?
71 J. Kan. Bar Ass'n, May 2002, 21-32 (2002)
I. Introduction
When an officer stops a car on the highway for a traffic offense, can he ask the driver if he is transporting illegal drugs? Can he ask to search the car? If the driver consents to such a search, how thorough of a search may the officer conduct? Once the officer has given back the driver his license and written a citation, may the officer continue to question the driver? May the driver refuse to answer the officer's questions and simply drive away?
Questions such as these have given rise to one of the most complicated, active, and litigated areas of criminal law - that of the ordinary traffic stop.
Because the geographic boundaries of the 10th Circuit include I-70 and other well-traveled arteries of the drug trade, traffic stops occasioned by the drug interdiction efforts of law enforcement have been a source of much of the 10th Circuit's Fourth Amendment jurisprudence during the last decade. The complexity of the rules that govern traffic stops and the application of those rules to limitless factual scenarios have produced a considerable body of law whose intensely fact-driven analysis can be confusing to even the most seasoned practitioners.
This article will review the current law relating to traffic stops and attendant Fourth Amendment issues. Issues such as detentions, seizures, consensual encounters, reasonable suspicion, probable cause, consent, and standing will be discussed. Because most of the law generated in this area has come from so-called "drug interdiction" stops on the highway, these types of stops will be the main reference point of discussion - though the rules relating to these stops are applicable to nearly all types of traffic stops. This article will focus exclusively on the law developed in the 10th Circuit, as this has become a rich source of law for other circuits in the nation as well as the state courts in Kansas.
II. Consensual encounter, detention, or seizure?
When an officer observes a vehicle commit a traffic violation and stops the driver of that vehicle to write a citation, he has seized the driver for Fourth Amendment purposes, and the officer's conduct during the stop is subject to Fourth Amendment standards of reasonableness.[1] But not all seizures are equal. "Stops, detentions, and arrests all constitute seizures under the Fourth Amendment and differ primarily in the degree to which they restrict the individual's freedom of movement."[2] The degree to which the driver's freedom of movement is restricted during the stop determines both the kind of seizure implicated during the stop and whether the contact between the officer and the driver is a seizure at all. Thus, classifying the nature of the contact between the driver and/or passengers in a vehicle is the beginning point for the analysis. "According to the Supreme Court, there are three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause."[3]
These principles are critical, because the nature of the encounter determines what types of investigative functions the officer may perform during the course of the stop. What is more, the reasonableness of an officer's conduct - questioning the driver about drugs, asking for consent to search, or running a drug dog around the car - is judged in light of how the encounter between the officer and the driver is defined. For example, because consensual encounters do not implicate the Fourth Amendment, there is no requirement that an officer's questioning or investigation be limited or even reasonable. But, if the encounter is a detention, then the Fourth Amendment does apply, and the encounter must be limited in scope and duration and last no longer than necessary to effectuate the original purpose of the stop. Further, if the encounter becomes an arrest, then the panoply of exceptions to Fourth Amendment search warrant requirement may apply, and the officer may be able to search the vehicle and its occupants.
Determining the type of encounter implicated in a car stop scenario is a fact-driven inquiry, and there are few hard-and-fast rules that provide guidance. Depending on the facts, "[a] consensual encounter may escalate into an investigative detention. An investigative detention may escalate into a full-blown arrest, or it may de-escalate into a consensual encounter."[4] For example, a traffic stop on the highway that begins as a seizure may, in some circumstances, de-escalate into a consensual encounter when the officer returns his driver's license or other documentation.[5] On the other hand, even if the officer returns the license or other documentation, the encounter may remain a detention if the officer communicates to the driver that he is not free to go by some show of authority, such as the displaying of a weapon, use of a commanding tone of voice, physical touching of the driver, or leaning on the vehicle.[6] These types of considerations determine how the police-citizen encounter is characterized for Fourth Amendment purposes, as well as how the reasonableness of the stop will ultimately be judged.
III. The initial stop - permissible scope and duration
"A traffic stop, however brief, constitutes a seizure within the meaning of the Fourth Amendment, and is therefore only constitutional if it is 'reasonable.'"[7] Because traffic stops are considered to be "more analogous to an investigative detention than a custodial arrest,"[8] they are analyzed "under the principles pertaining to investigative detentions set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)."[9] Borrowing from Terry, therefore, a traffic stop is reasonable only if two requirements are met. The court looks first at whether "the officer's action was justified at its inception,"[10] and second, if "it was reasonably related in scope to the circumstances which justified the interference in the first place."[11]
The first inquiry - determining whether the officer's action was justified at its inception - is straightforward. To justify the initial action - ordinarily, the stopping of the vehicle - the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."[12] This generally means that an officer must have a lawful basis to stop the vehicle in the first place, such as an observed traffic violation. Because a traffic stop may be based on probable cause or reasonable suspicion,[13] the government does not have to prove that a traffic violation actually occurred to justify a traffic stop. Rather, "[a]n initial traffic stop is valid under the Fourth Amendment not only if based on an observed traffic violation, but also if the officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring."[14] The court considers the totality of the circumstances when determining whether reasonable suspicion or probable cause existed for the stop of a vehicle based upon a traffic violation.[15]
Sometimes an officer conducts a traffic stop of a vehicle as a pretext to investigate other crimes, such as drug-trafficking. For example, thinking that an individual he sees driving on the highway is transporting drugs, the officer will stop him for a minor traffic violation such as having a cracked windshield as a pretext to investigate his suspicions. In such cases, the officer's subjective motivations for stopping the vehicle are irrelevant to the question of whether the stop is constitutional.[16] In determining whether the officer's action was constitutionally justified at its inception, the "sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated 'any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction."[17]
The second inquiry - determining whether the officer's action was reasonably related to the circumstances, which justified the interference in the first place - is more complicated. Consistent with Terry, an investigative detention must be limited both in scope and duration; this means that it can "last no longer than is necessary to effectuate the purpose of the stop"[18] and "must be carefully tailored to its underlying justification."[19] Stated differently, a "traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out."[20]
Scope generally refers to the types of investigative functions an officer may perform during a traffic stop. In most traffic stop situations based on an observed traffic violation, an officer will approach the driver and engage him in conversation. Ordinarily, the officer will greet the driver, obtain his license and registration, run checks on the license and registration through dispatch, write a citation, and then tell the driver that he is free to go. But if he suspects the driver is transporting illegal drugs or otherwise violating the law, the officer might wish to employ more intrusive investigative tactics. He might question the driver about his travel...
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